Fiore v. Galang

| NY | Mar 28, 1985

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

We agree that absent a sufficient affidavit of merits it was error, as a matter of law, not to grant defendant Hospital’s motion for summary judgment (Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904; Canter v Mulnick, 60 NY2d 689; Stolowitz v Mount Sinai Hosp., 60 NY2d 685). Moreover, in light of plaintiffs’ argument that the verified complaint should be accepted as an affidavit of merits (CPLR 105 [t]), we note that, except as to matters within the ordinary experience and knowledge of laymen, in a medical malpractice action, expert medical opinion evidence is required to demonstrate merit (cf. Meiselman v Crown Hgts. Hosp., 285 NY 389). This malpractice claim is for negligence in the failure to diagnose cancer and in the performance of an abdominal operation, which are not matters within the ordinary experience of laypersons.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.